Court Discretion In Wills Variation Claims

Court Discretion In Wills Variation Claims

In wills variation cases now brought under S. 60 WESA , the judge has “entire discretion” in deciding pro or against a claimant on its findings of fact.

In Swain v Dennison 1967 SCR 7 the Supreme Court of Canada held that the jurisdiction of the court in such claims is statutory, not founded in equity and the entire jurisdiction of the court is discretionary.

Within reason the court can make findings of fact in its discretion which makes it very difficult to appeal since the appeal court would have to substitute its own findings of fact in place of the trial judge unless the appeal court finds that the trial judge did not give sufficient weight to relevant factors.

The BC Appeal court in Kish v Sobchak and Doyle 2016 BCCA 65 stated the following about the courts proper use of discretion:

33.   The line between the exercise of judicial discretion and the finding of facts is not easy to enunciate. For purposes of this case, I respectfully adopt Lord Bingham’s description of judicial discretion given in The Business of Judging: Selected Essays and Speeches(2000):

According to my definition, an issue falls within a judge’s discretion if, being governed by no rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what it is fair and just to do in the particular case.

He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that embarks on the exercise of a discretion.

I believe this definition to be broadly consistent with the usage adopted in statutes. [At 36; emphasis added.]

Lord Bingham also explains that fact-finding is not “discretionary”, although some judges have described it as such. In his words:

… it is one thing to say that the responsibility of finding the facts is entrusted to a particular person or body, be he judge, arbitrator, official or public authority, and that such finding is to be treated as conclusive or virtually so. But it is quite another to describe that function as discretionary. It is, I suggest, nothing of the kind. In finding the facts the judge’s job is to consider all the conflicting evidence this way and that and decide as best he can where the truth lies. It is very much the task performed, for instance, by the historian or the journalist as part of his stock in trade. The judges of course are constricted by formalities and rules of evidence which do not afflict them. On the other hand, he has powers of compelling testimony which they would envy. It is none the less essentially the same function. Yet to say of a historian or journalist that he exercised a discretion in reaching conclusions of fact would, I suggest, be regarded as a libellous. The judge must exercise judgment, not discretion, in finding the facts, and it is usually the most difficult and often most exacting task which the civil trial judge has to undertake. [At 37; emphasis added.]

Wills Variation: BC Court Overturns Will

Court Overturns Man's Will on Moral Grounds

Court Overturns

The British Columbia Court over turned and varied a will where his four daughters had been left with nothing.

William Werbenuk died more than two years ago with just enough money in the bank to pay for his funeral. The 86-year-old widower’s will gave all assets to his only son, Randall, and left his four daughters with nothing.

This week, a B.C. Supreme Court judge overturned the Pentiction, B.C., man’s will, saying his estate should be distributed to all of the man’s children based on “contemporary moral standards” – a move that has sparked much debate about a judge’s right to change a person’s will after they die.

Justice Randall Wong, ordered the estate, including Mr. Werbenuk’s Saskatchewan farmland and a valuable and extensive violin collection, be split according to need among Mr. Werbenuk’s son and four daughters, three of whom testified having endured years of abuse at the hands of their father.

The daughters have a “valid moral claim to share in the family wealth,” Judge Wong ruled.

According to the ruling, Mr. Werbenuk physically and emotionally abused his daughters. As punishment, their father regularly forced them to wash his feet, the women testified – a detail that helped lead Judge Wong to decide that the father was a “hard and rigid man who ruled his family, and especially the women, with an iron fist.”

Some criticized Judge Wong’s decision as a threat to “testamentary autonomy,” or, in other words, a person’s right to give their assets to whomever they want – a long running and divisive debate among B.C.’s litigators and defenders.

“There are lots of people in the bar in B.C., myself included, who think people should be allowed to give their stuff to whoever they want it to be given to,” said Bruce Hallsor, partner at Crease Harmon LLP in Victoria a d the immediate past president of the Canadian Bar Association’s national section on wills and trust.

“This gentleman, in this particular case, seems to be of unfortunate temperament and old-fashioned. The day before he died, he could have given everything he owns to his son.”

In British Columbia, a parent has a moral obligation to provide for their children after death under the Wills Variation Act, said Trevor Todd, a lawyer who exclusively defends disinherited people. It’s also the only province in which a non-dependent adult child can challenge his or her deceased parent’s will.

In most other provinces, only dependents and spouses can appeal a will before a judge through a similar wills variation act, he said.

The Wills Variation Act has helped many adult children who feel they have been unjustly denied their parents’ wealth after death, said Mr. Todd.

“I see lots of cases like that, where the children are damaged goods,” he said. “What a lot of these cases are is the last kick at you from the grave, the last insult.”

Judges are often sensitive to that and they do need to make judgments on individual cases because they’re all so different, he said.

A parent may explain why children were disinherited, but that’s only one side of the story, said Mr. Todd.

“Sometimes you’ll see wills where a father will be disinheriting his daughter, saying ‘She hasn’t called me in 30 years,’ When you tell the daughter dad says he hasn’t seen her, that they’re estranged, she might say ‘God damn right we are, he molested me,” Mr. Todd said.

Randall Werbenuk’s lawyer, Charles Albas, said his client is “devastated” by the judge’s ruling. He felt he was following his father’s wishes and that his estranged sisters were exaggerating.

Judge Wong empathized with the harsh life the daughters had been subjected to and Randall Werbenuk has to accept that, Mr. Albas said.

“[My client] is of the opinion that the judge was unduly hard on him. He basically did what his dad told him and he had a reasonable expectation that in doing that, he would be rewarded [in the will],” he said.

Randall Werbenuk will now receive 20% of his father’s assets.

His lawyer is considering an appeal.

– National Post

Adoption Purposes

Adoption Purposes

Adoption is for all purposes. I advised a legal enquiry today that he could not claim against the estate of his natural father (“birth parent”) since he had been adopted by another party and that for estate claims, his adoption was for “all purposes”.

Section 3 WESA re Adoption states:

Effect of adoption

3  (0.1) In this section, “pre-adoption parent” means a person who, before the adoption of a child, was the child’s parent.

(1) Subject to this section, if the relationship of parent and child arising from the adoption of a child must be established at any generation in order to determine succession under this Act, the relationship is to be determined in accordance with the Adoption Act respecting the effect of adoption.

(2) Subject to subsection (3), if a child is adopted,

(a) the child is not entitled to the estate of his or her pre-adoption parent except through the will of the pre-adoption parent, and

(b) a pre-adoption parent of the child is not entitled to the estate of the child except through the will of the child.

(3) Adoption of a child by the spouse of a pre-adoption parent does not terminate the relationship of parent and child between the child and the pre-adoption parent for purposes of succession under this Act.

In other words on an intestacy an adopted child may not inherit from his or her birth parent and a birth parent may not inherit from a child that has been adopted , with the exception of step-parent adoptions.

Nothing however prevents the right of both children and parents to leave a gift by will to each other irrespective of the adoption.

This section also precludes a child who has been adopted out from bringing a wills variation claim ( S 60 WESA) against the birth parent’s estate.

Disabled Adult Succeeds Wills Variation

Disabled Adult Succeeds Wills Variation

Willott v. Willott Estate 1997 CarswellBC 2016, [1997] B.C.J. No. 2073, 20 E.T.R. (2d) 211 is a 1997 wills variation action where a deceased parent’s estate was required to pay additional monies to a disabled son who unable to work, survived on a small disability pension due to his mental illness.

The estate was approximately $500,000 and was left solely to the sister of the deceased.

The disabled son succeeded in his wills variation claim ( now section 60, WESA)  with the court finding that state paid disability benefits are the bare minimum and that a parent still has a moral obligation to provide more for the child’s benefit.

THE COURT STATED:

73      Therefore, I find that a judicious testatrix, as part of her consideration of what is adequate support for an adult child who is incapable of supporting himself due to disabilities, may take into account the provisions made by the state for that person. That is the starting point. The state provides for basic needs. But the state also is willing to provide for those needs without deduction while allowing for some “extras” for the disabled person. Thus arise the exemptions in the Disability Benefits Program Act and the Regulations to that Act.

74      I find on the whole of the evidence that Iris Willott did not make adequate provision for the proper maintenance and support of her son, and did not discharge her moral obligation to him. Lot 1 will provide accommodation for him should he chose to live there or, if he chooses to sell that property, I find it will provide him with enough money to purchase other suitable accommodation. His benefits under the regulations to Disability Benefits Program Act will cover his house insurance, taxes, fuel, water, hydro, garbage and basic telephone expenses (s. 5 Schedule A). In addition, benefits will provide him and his wife with medical and dental coverage, eye care, prescriptions and home support. But the monthly amount of $608 which he will then receive (assuming he and his wife are together) is not sufficient, I find, to maintain him to the standard which was reasonable given his own circumstances at the time of his mother’s death and the other factors the court is required to consider when dealing with Wills Variation Act actions, including the size of the estate.

75      I find that Mr. Willott should be provided with a further lump sum which (together with the remainder of the cash bequest which he received under the will) will enable him to purchase a reasonably reliable vehicle and certain household items which he requires. Many needs for the later will be satisfied by his receipt of the balance of Iris Willott’s effects which all the defendants agree he should have. I find the additional amount that Mr. Willott should receive is $20,000. If Mr. Willott, with the assistance of his wife and others, plans efficiently, this sum should also suffice to cover his initial vehicle insurance costs as well as living and other transitional expenses which he will incur over the one to three months which I estimate will be the time during which he will not receive benefits due to receipt of funds from the estate. Should Mr. Willott choose to sell the property he can and should plan the sale and any purchase of other property to minimize the time during which he will not receive benefits.

76      In addition, Mr. Willott should have the benefit of a trust as contemplated by the Disability Benefits Program Act and Regulations. This trust shall be in the amount of $100,000. Mr. Willott shall receive the income from this trust to the maximum allowed under the regulations. The balance of the annual trust income, after payments of all costs related to the administration of the trust, shall be paid to the Society, from whose share of the estate the trust shall be created. Upon Mr. Willott’s death the capital of the trust shall revert to the Society. At present this means Mr. Willott will receive from the trust a maximum of $5,484 per year or $457 per month in addition to the $608 in monthly benefits which he receives. If necessary, counsel may speak to the question of the appointment of an appropriate trustee.

77      The trust shall be created from funds from the sale of Lot 102 which shall be listed for sale forthwith. Mr. Willott may call for the transfer of Lot 1 and the balance of the funds owing directly to him at any time from the date of this judgment but not later than three months after the establishment of the trust. Until that time, he shall be entitled to interest on the funds owing directly to him in the amount of 5% per year payable at the time he receives the funds. Should Mr. Willott chose to defer the transfer of Lot 1 he will not be entitled to any accounting with respect to the income from it, nor shall he be responsible for any of the expenses relating to it.

78      The additional lump sum payment shall fall rateably on the estate. Mr. Onwood’s share of the estate shall be satisfied next after that of Mr. Willott. Thereafter the congregation’s share of the estate shall be satisfied, following which the Society shall receive its share.

Will Variation: Daughter Awarded Entire Estate

Will Varied to Give Daughter Entire Estate

Hagen-Bourgeault v. Martens 2016 BCSC 1096 varied a will (S. 60 WESA) to give a 25 year old daughter with two young children on social assistance, the entire estate of $2,200 per month until 2025, instead of her husband of two years who was well off but left the entire estate under her will.

The court found that the husband beneficiary of the estate had was financially independent and had limited legal or moral entitlement to the estate.

The daughter in turn had great financial need.

The Court Stated:

The leading Canadian decision on variation principles is Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807; 93 B.C.L.R. (2d) 145. In delivering the Court’s unanimous judgment, McLachlin J., as she then was, confirmed that the language of the WVA confers on the trial court a broad discretion to make orders that are just in the specific circumstances of a case, and in light of contemporary standards. The WVA is to be seen as imposing limitations of testamentary authority. At a minimum, survivors are not to be left destitute, such that they will impose a burden on the state; but what is to be considered “adequate, just and equitable” is not limited to need alone.

Entire estate

[20]         Tataryn further discusses the means by which competing claims are to be assessed:

How are conflicting claims to be balanced against each other?  Where the estate permits, all should be met. Where priorities must be considered, it seems to me that claims which would have been recognized during the testator’s life — i.e., claims based upon not only moral obligation but legal obligations — should generally take precedence over moral claims. As between moral claims, some may be stronger than others. It falls to the court to weigh the strength of each claim and assign to each its proper priority. In doing this, one should take into account the important changes consequent upon the death of the testator. There is no longer any need to provide for the deceased and reasonable expectations following upon death may not be the same as in the event of a separation during lifetime. A will may provide a framework for the protection of the beneficiaries and future generations and the carrying out of legitimate social purposes. Any moral duty should be assessed in the light of the deceased’s legitimate concerns which, where the assets of the estate permit, may go beyond providing for the surviving spouse and children.

[21]         In my judgment, the needs of the plaintiff, in relation to the very modest size of the estate, completely outweigh all claims of Mr. Martens. Mr. Martens, though he was no doubt the loving spouse of the deceased, had only a short relationship and demonstrates no financial dependence upon her during their lifetime. The amount of the structured settlement fund did not increase in value during their relationship. He has no claims founded in unjust enrichments. In the circumstances, he would not have been entitled to spousal support on the breakup of their marriage. His legal and moral entitlement to a share in Michelle’s estate is consequently limited, at best. Furthermore, the size of the estate is so modest that in their entirety, the structured settlement proceeds would appear to be sufficient only just to lift the plaintiff and her two dependent children out of poverty, and then only for so long as the fund lasts.

[22]         In the present case it does little violence to the testator’s intentions to make an immediate full reapportionment in the plaintiff’s favour. It is a fair inference, from the evidence, that the testator’s decision to leave to Mr. Martens’ discretion the amount of support to be paid to the plaintiff, when the will was made in 2012, may have reflected some hesitation as to the plaintiff’s ability to exercise good judgment. Whatever qualms may have led the testator to structure her will in this fashion, as opposed to leaving an outright gift to the plaintiff, there is no evidence now which points to any such concern. Indeed, the mechanism of the structured settlement itself would serve as a check on the funds being squandered. The plaintiff appears, on the evidence, to have survived a difficult adolescence and now to be doing her utmost to see to the need of her children, in very challenging circumstances.

Interim Payments Under Wills Variation

Interim Payments Under Wills Variation

Grant v Grant estate 1997 Carswell BC 3773 allowed a widow in need of funds to receive interim payments under the wills variation provisions of WESA.

The Grant and Hecht cases are only a few reported cases of the ability to apply to court for an interim distribution of funds where appropriate provided there is no risk to the ultimate redistribution of the estate  should the will be varied.

The Judge in the Grant case  stated:

In Hecht v. Reid et al, 39 E.T.R. 165, Justice Donald as he then was, reviewed this section, came to the conclusion that a partial legacy under a Will can be paid notwithstanding a pending claim for variation when the risk that the Variation Order will encroach upon the funds needed to satisfy the legacy is remote.

13      In my view, the jurisdictional question has been settled by this court.
14      The only issue for determination is whether the proposed payments to Nancy Grant pose a risk to the ultimate distribution in the event
there is a variation to the Will.

Public Policy Protects Wills Variation Claims

Public Policy Protects Wills Variation Claims

If a will contains a penalty provision, known as a forfeiture clause, threatening to impose a penalty upon a beneficiary if a will is contested, then in that event,  wills variation claims are protected by public policy so that such a clause is not enforceable in wills variation actions.

Wills variation claims are now found at section 60 of WESA.

Bellinger v. Fayers, Nuytten  2003  BCSC  563 reviewed the law relating to forfeiture clauses including how they relate to wills variation claims.

The deceased’s will contained the following forfeiture provision: 

          “7.      IT IS MY FURTHER DESIRE, because of an expressed intention of one of the legatees to contest the terms of this my Will, that should any person do so then he or she shall forfeit any legacy he or she may be otherwise entitled to.”

Kent v. McKay (1982), 139 D.L.R. (3d) 318 (B.C.S.C. )

held the forfeiture clause void in so far as it purported to limit claims the Wills Variation Act.

He found the condition contrary to public policy because it attempted to penalize the legatee for bringing a successful action provided by statute

In reaching this decision Justice Lander relied on the Australian case Re Gaynor,(1960) V.R. 640 (S.C.), He then found as follows:

“It cannot be denied with respect that the intent of the Legislature in creating the Wills Variation Act, is to ensure adequate maintenance and support for specified individuals.  It is a matter of public policy that support and maintenance be provided for those defined individuals and it would be contrary to such policy to allow a Testator to circumvent the provisions of the Wills Variation Act by the creation of such as para. 9.”

Section 58 WESA: Journal Not a Will

Section 58 WESA: Journal Not a Will

Re Hadley Estate 2016 BCSC 765 held that an unwitnessed  journal entry written by the deceased in her daily entry and stated to be  ” my last will”  will, was not in fact her last valid will under the curative provisions of section 58 WESA.

This decision was upheld on appeal- see Hadley Estate 2017 BCCA 311.

The administrator of her estate brought an application under section 58 of  the wills estates succession act, WESA  for determination. If the September 2014 journal entry was a will or  was a 2008 will the last valid will .

After reviewing several factors both pro con, the court found that the following rambling  journal entry was not a valid will:

[p. 1]
Sept. 1, 2014 Monday Tonight @ 8.30 pm I believe I had a something [?] to me. I am confused now. 9 pm. At 6 pm I went to English Bay & watched the sunset – talked to the life guard – at 8 pm I walked home – used my walker. I pushed my walker along Davie St to the Cardero Mini park in front of our our [sic] building – Seacrest Apt. Sat on my walker – At 8 pm I went inside “Seacrest – parked my walker inside the locker room & went up the stairs to my suite [ . . . ] Suddenly I had huge flashes in both my eyes – Zig Zag flashes like a up & down like a chart. – I could not could not see – the flashes were very bright – very strong – I tried to see I had no-one to phone Ginger phoned me – All was well – My niece lives in Windsor Ontario Mrs. Virginia Maziak-[phone no. omitted] I am somewhat dizzy now I had a terrible experience / frightening experience / flashes now. I ate a chocolate bar – [ ? ] glass peach cider – walked up & down my suite – scary. I hoped this would help me [ ? ]. [Suite no. ] Bullies me every day.
[p. 2]
Continued
September 1, 2014.. Monday.
This is my last Will.
Because of the daily harassment by [individuals at Seacrest]. I have been unable to [?] my personal needs – thus I put off seeing a lawyer to sue them & Seacrest Company Shareholders & to change my will. As of this time in my life I leave all my estate (my money in bonds & my apartment #205 Seacrest Apts. Ltd. Company – self owned to the following people who were kind to me (1) My niece Virginia Maziak who live lives in Windsor Ontario @ [address omitted]. Virginia (Ginger) was continually kind to me. (2) Bruce Macdonald — [phone no. omitted] Because he contributed so much to save the Hollow Tree in Stanley Park and was kind to me. (3) Daniel Pierce [phone no. omitted] a young Film Producer who worked so hard and was kind to me. It is not common knowledge that I am an orphan as a child. I have no heirs. My husband John Donald Hadley died and so did my only child – Karen Margaret Hadley. I struggled all my life to work and save some money to be independent. I have no debts. I have some bills to pay now – Seacrest Co. Apartment 1947 must pay for repairs, windows, ceiling walls, etc.
[p. 3]
Continued Eleanor Lena Hadley (Sanchuk) born Sept. 15, 1921
I hope to see Mr. David Ebby in person to write this will. I just had a scare – that prompted me to hastily [?] write this will. Many people have helped me. However [illegible] for personal reasons they are not included in my will.
Also, I do have some old penny stocks that faded away and in my box (deposit) Royal Bank corner of West Georgia & Burrard Streets where my previous will is.
I live in Seacrest Apts. ltd at the present time. Since 1997 I have been bullied & harassed & denied my entitlements by [individuals named]. They should be sued for destroying 17 years of my life. So that I am living in fear to this day. I could not sell my suite because [individual named] in 1997 put an a unhealthy dryer vent for the whole building (Seacrest) under my kitchen windows
11.20A.M. EH
[p. 4]
My will Continued:
Re: If Mr. David Ebby is willing I would like him to sue all the Seacrest Shareholders named in this will for criminally destroying my life since 1997 when [individual named] unlawfully all the Seacrest Co 20 Shareholders Basic Rate a/os [?] 1947 Original Agreement – I have the original Memorandum. Because of ill health due to daily harassment by those named in my will I was and am presently too ill physically to go to court. I tried this [?] in the Small Court. At that time Judge Gee Gee said – that I was in the wrong Court. I do not have the original Court Trial documents (only the edited document which omits my complaints entirely. Why Judge Gee did this is a puzzle to me. Also my lawyer [individual and firm named] failed to present my case. Because of the daily harassment by [individuals named] to this day I was & am unable to bring my case to trial again. These 3 people / shareholders / Seacrest have also used the computer to [illegible] my name and [illegible] a fake document.

THE  LAW

The curative provisions of section 58 conferred discretion on the court to relieve against the consequences of noncompliance  with the  testamentary formalities  in a “record, document or writing or marking on a will or document”.
In prescribed the circumstances, section 58 permits the court to address and your issues of formal invalidity  in such documents .
The leading case In British Columbia is Estate of young  2015 BC SC 182 .
Young followed the law  of Manitoba in their leading case of George v.  Daily (  1997)  143 DLR (4th) 273  ( Man. CA), which stated :
51      Because of the similarity between s. 58 and the curative provision in Manitoba’s Wills Act, C.C.S.M., c. W-150, in Young, Dickson J. (as she then was) reviewed a number of Manitoba authorities, including the leading case of George v. Daily (1997), 143 D.L.R. (4th) 273 (Man. C.A.). She then wrote by way of summary (at paras. 34-37) [underlining added]:
[34] As is apparent from the foregoing, a determination of whether to exercise the court’s curative power with respect to a non-compliant document is inevitably and intensely fact-sensitive. Two principal issues for consideration emerge from the post-1995 Manitoba authorities. The first [is] an obvious threshold issue: is the document authentic? The second, and core, issue is whether the non-compliant document represents the deceased’s testamentary intentions, as that concept was explained in George.
[35] In George the court confirmed that testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.
[36] The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document: [citations omitted].
[37] While imperfect or even non-compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention: George at para. 81.
52      Extrinsic evidence is admissible when considering whether a document is a valid will and whether the deceased had testamentary intent: see Yaremkewich Estate (Re), 2015 BCSC 1124, at paras. 31-32. Watchuk J. observed further (after reviewing Young and George), at para. 37:

Burden of Proof In Mental Capacity

Burden of Proof In Mental Capacity

Becker v Becker 2016 BCSC 487 nicely summarizes much of the law relating to mental capacity aka testamentary capacity including the law re the burden of proof in mental capacity cases.

THE LAW

51      The burden of proving testamentary capacity is on the party propounding the Will, but there is a presumption of capacity where the Will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. That presumption may be rebutted by evidence of suspicious circumstances, in which case the burden reverts to the propounder to prove testamentary capacity on the balance of probabilities: Vout v. Hay, [1995] 2 S.C.R. 876 (S.C.C.).

52      The “suspicious circumstances” must do more than create “a general miasma of suspicion”; they must create “a specific and focused suspicion that the testator may not have known and approved of the contents of the will: Clark v. Nash (1989), 61 D.L.R. (4th) 409 (B.C. C.A.) at 425.

53      Suspicion may relate to circumstances:

i) surrounding the preparation of the will;

ii) tending to call into question the capacity of the testator; or

iii) tending to show that the free will of the testator was overborne by acts of coercion or fraud: Laszlo v. Lawton, 2013 BCSC 305 (B.C. S.C.) at para. 202.

54      The usual civil standard of proof — namely, proof on a balance of probabilities — applies, but as a practical matter the extent of the proof required will be proportionate to the gravity of the suspicion, which will vary with the circumstances peculiar to each case: Vout at para. 24; Laszlo at para. 205.

55      In Laszlo at para. 207, Justice Ballance said there is no fixed checklist of circumstances that will be considered suspicious, but:

[207] … [c]ommonly occurring themes include where a beneficiary is instrumental in the preparation of the will (especially where the beneficiary stands in a fiduciary position to the testator), or where the will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin”: Longmuir v. Holland, 2000 BCCA 53, at para. 69 [Longmuir]; Heron Estate v. Lennox, 2000 BCSC 1553 at para. 67 [Heron Estate].

56      Ballance J. also discussed, at paras. 189 and 190, the question of timing:

[189] Timing is key. In general, the first relevant time that testators must have testamentary capacity is when they give will instructions; the second is when the will is executed. In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions: Parker v. Felgate (1883), 8 P.D. 171; Brownhill Estate (1986), 72 N.S.R. (2d) 181 (Co. Ct).

[190] The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P. & D. 354at 398; Kri v. Patterson, [1989] O.J. No. 1817 (Ont. Surr. Ct.); Fawson Estate, Re, 2012 NSSC 55 (N.S. S.C.); Moore v. Drummond, 2012 BCSC 1702 (B.C. S.C.) at para. 47 [Moore]; Coleman v. Coleman Estate, 2008 NSSC 396 (N.S. S.C.) [Coleman].

[Emphasis added.]

Wills Variation: Elderly Common Law Spouse

Wills Variation: Elderly Common Law Spouse

Mars v Blais 2011 BCSC 1714 involved a 91 year old widow who brought a wills variation action ( now S. 60 WESA) against the estate of her late common law partner of 9 years. The wills variation  action was prior to WESA but would likely have been decided the same after WESA came into effect.

They value of the estate was approximately $1.5 million.

The deceased left a will, leaving the plaintiff a life estate in the matrimonial home, plus $50,000. He left the residue of the estate to his 62-year-old son who had no income and owned no property.

The 91-year-old plaintiff was economically independent with their own pension income plus rental from the property, and the judge found that she would not need to use her own capital in order to live.

All of the assets of the deceased’s estate were accumulated by the deceased prior to meeting the plaintiff. They lived a modest lifestyle and did not share or intermingle their assets.

The court awarded the plaintiff the sum of $200,000 and the life estate in the matrimonial home on the same terms of the will, which provided for the estate to pay for the upkeep and taxes of the  home and property, which was in need of substantial repair.

Discussion

[61]           There are two interests protected by the WVA. The first is to ensure adequate, just and equitable provision for the testator’s spouse and children and the second is to honour his testamentary autonomy (Tataryn v. Tataryn 1994 51 (SCC), [1994] 2 S.C.R. 807; Hall v. Korejwo, 2011 BCCA 355 , 2011 BCCA 355 at para. 35).

[62]           The first consideration is the testator’s legal obligations to a spouse and children and the second is the moral obligations to spouses and children with legal obligations taking precedence over moral obligations. (Hall at para. 35).

[63]           In determining the legal obligation the first consideration is the testator’s legal obligations to support his spouse or children (Picketts v. Hall (Estate), 2009 BCCA 329 , 2009 BCCA 329 at para. 50). “The legal aspect of [the plaintiff’s] claim under the [WVA] is limited to the claim she would have had for spousal support” (Picketts at para. 58).

[64]           None of the assets in the estate came into being through any joint effort involving Ms. Mars. There was no evidence tendered about Ms. Mars’ life expectancy or evidence of her ongoing financial needs for support. The general statement made by her that she does not need more money to meet her needs satisfies me that she is able to live comfortably, on her current income, at the level they shared before Mr. Bain’s death.

[65]           In view of the incomes of the parties throughout their time together and the modest life style enjoyed by them, Mr. Bain’s Will was more than adequate to meet his legal obligations to provide spousal support for Ms. Mars as contemplated by Low J.A. in Picketts.

[66]           The assessment of Mr. Bain’s support obligations is the same whether based on the compensatory or non-compensatory approach. (Morgan v. Pengelly Estate 2011 BCSC 1114 , 2011 BCSC 1114 at para 205).

[67]           The second question is whether Mr. Bain’s Will has satisfied his moral obligations to family members that could reasonably be expected of a judicious person in like circumstances. Claims based on legal obligations will generally take precedence over those based on moral duties, and what is adequate, just and equitable in the circumstances is judged by contemporary standards. See Hall at para. 35.

[68]           Any variation of Mr. Bain’s will should be limited to the extent required to achieve the objectives of the WVA. (Tataryn at 823-4;Crerar v. Crerar 1998 5375 (BC CA), (1998) 61, B.C.L.R. (3rd) 55.

[69]           The Estate Administration Act, R.S.B.C. 1996, c. 122, provides some indication of contemporary standards but does not directly affect the considerations that govern the applications under the WVA (Hall at paras. 44 and 46).

[70]           In analyzing Mr. Bain’s moral obligation I am informed by the comments by McLachlan J. in Tataryn at 822-23 in assessing a testator’s moral obligation:

For further guidance in determining what is “adequate, just and equitable”, the court should next turn to the testator’s moral duties toward spouse and children.  It is to the determination of these moral duties that the concerns about uncertainty are usually addressed.  There being no clear legal standard by which to judge moral duties, these obligations are admittedly more susceptible of being viewed differently by different people.  Nevertheless, the uncertainty, even in this area, may not be so great as has been sometimes thought.  For example, most people would agree that although the law may not require a supporting spouse to make provision for a dependent spouse after his death, a strong moral obligation to do so exists if the size of the estate permits.  Similarly, most people would agree that an adult dependent child is entitled to such consideration as the size of the estate and the testator’s other obligations may allow.  While the moral claim of independent adult children may be more tenuous, a large body of case law exists suggesting that, if the size of the estate permits and in the absence of circumstances which negate the existence of such an obligation, some provision for such children should be made: Brauer v. Hilton 1979 746 (BC CA), (1979), 15 B.C.L.R. 116 (C.A.);  Cowan v. Cowan Estate (1988), 30 E.T.R. 216 (B.C.S.C.), aff’d (1990), 37 E.T.R. 308 (B.C.C.A.); Nulty v. Nulty Estate 1989 244 (BC CA), (1989), 41 B.C.L.R. (2d) 343 (C.A.).  See also Price v. Lypchuk Estate, supra, and Bell v. Roy Estate1993 1262 (BC CA), (1993), 75 B.C.L.R. (2d) 213 (C.A.) for cases where the moral duty was seen to be negated.

[71]           In Bridger v. Bridger Estate, 2006 BCCA 230 , 2006 BCCA 230 McKenzie J.A. discussed the tension between competing moral claims:

[20]      … Tataryn recognizes that there is no clear legal standard to judge moral claims and the test is more nebulous where the surviving spouse is not strictly speaking a dependent spouse and the children are all financially independent adults. While, as McLachlin J. observes in Tataryn, there may be a number of options for dividing assets by a testator which are adequate, just and equitable, I do not think they include a disposition that entirely prefers the moral claims of adult independent children to those of a loyal spouse who provided care for the testator over years of debilitating decline.

[72]           Low J.A. in Picketts described several helpful factors in assessing the moral obligations of a testator. He examined:

•        the absence of a legal obligation to the testator’s sons;

•        the length of the marital relationship – in this case nine years;

•        the agreement of the spouse to give up a career depriving her of the opportunity to accumulate in the estate of her own;

•        the necessity of the spouse to dip into her savings to supplement living expenses the testator had agreed to provide;

•        the lengthy period of loving and effective care provided by the spouse to the testator during his decline;

•        a promise made by the testator to take care of the spouse as though she were his wife; and

•        the size and liquidity of the estate.

[73]           In this case, there appears to be a moral obligation owed by Mr. Bain to his son. Daniel Bain is 62 years of age and appears to be vocationally and economically vulnerable. He has no income and no property (except for the Scottish property) and has been dependent on the estate for his living expenses for at least eight months. He is not looking for work but he seems to have little demonstrated ability to find or keep work. There was little or no evidence to explain Daniel’s circumstances and I am left to reach a conclusion without an abundance of information.

[74]           In the present case the parties began cohabitating quite late in life and remained together for nine years. They did not engage in a sharing of assets or significant economic contributions to the estate other than sharing the Odlum Street house. Both of Mr. Bain’s properties and his savings were acquired before they joined their households. It appeared to me that Ms. Mars did not have an expectation of sharing Mr. Bain’s properties.

[75]           Ms. Mars argued that Mr. Bain’s efforts to contact his lawyer about changes to his will and their plans to marry demonstrated an intention to share assets or make a different provision for the distribution of his estate after death. The evidence of what he intended is too speculative to be a factor in the assessment of his moral obligation.

[76]           Ms. Mars is economically self-sufficient with income from her own pension and the veteran’s pension provided by Mr. Bain. With her right to receive income from the Odlum Street house coupled with the $50,000 bequest she will not likely need to use her own funds to provide for her support.

[77]           Ms. Mars and Mr. Bain enjoyed a very modest but fulfilling relationship during their nine years together. Ms. Mars did provide care and support for Mr. Bain during his decline and until his death. Unlike Ms. Pickett’s role, the evidence of Ms. Mars’ care of Mr. Bain was quite limited.

[78]           The size of Mr. Bain’s estate is considerable. The liquidity in the estate is less certain; the evidence suggested that there could be significant capital gains taxes to be paid by the estate triggered by Mr. Bain’s death.

[79]           Ms. Mars has expressed a deep desire to continue to reside in the Odlum Street house. While counsel suggested that, in light of her age, she may not be able to remain in the house, there was no evidence that she is, or will be, incapable of living there.

[80]           Low J.A. commented that the spouse in Picketts was entitled to administer her own financial affairs and was entitled to a measure of testamentary autonomy of her own so that she could pass her own estate to whomever she wished (para. 65). I take Mr. Justice Low’s comment to suggest that the analysis of a moral obligation ought not to be influenced by the fact that the assets received after a variation of the will may not be used by the beneficiary before her death. The fact that Ms. Mars may give away or bequeath all of her assets to another person should not affect her entitlement to receive that which Mr. Bain was morally obliged to give her under the Will.

[81]           Mr. Bain left the bulk of the capital of his estate to Daniel. Daniel is, in my view, in serious need of support, although he professed an ability to support himself, the evidence suggests otherwise. The fact he has been using estate funds to support himself is one indication of his current need.